Another conference with no straight grants of review, although one case was close

At its Valentine’s Day conference, the Supreme Court again didn’t take any cases for review and opinion.  (The conference results list is mislabeled as being from the January 31 conference.)  One case was almost a straight grant, however.

Conference actions of note include:

• The close call was in People v. ConAgra Grocery Products Company  [Disclosure:  Horvitz & Levy is counsel for one of the defendants.]  Justices Goodwin Liu and Leondra Kruger recorded votes to grant review.  Normally, that would still be two votes short of a grant, but, with a long-standing vacancy on the court, these are not normal times, and one more vote might have done the trick.  This is speculation:  because a pro tem justice is not appointed to fill the vacancy unless “four justices cannot agree on a disposition” (according to the court’s Internal Operating Practices and Procedures), a third vote for review might have caused the remaining justices to also vote for review so as to avoid having a pro tem be the deciding vote on whether to hear the case.
  In the ConAgra case, the Court of Appeal’s 137-page published opinion only partially reversed a superior court order requiring defendants to pay $1.15 billion into a fund to be used to abate a public nuisance created by interior residential lead paint.  The opinion concluded that “substantial evidence does not support causation as to residences built after 1950.”
• Justice Liu also recorded a vote to grant review in a case where the Court of Appeal denied a habeas corpus petition in an unpublished opinion.  His was the only affirmative vote.
• There were five grant-and-hold orders in criminal cases.
• There were nine criminal grant-and-transfer orders.
• The court issued an order to show cause in a death penalty habeas corpus case.  The court exercised its discretion under Proposition 66 to retain the case for decision, although it ordered cause to be shown in the superior court.
• Acting on a pro per’s habeas corpus petition, the court issued an order to show cause in the Court of Appeal, referencing two aiding-and-abetting opinions.